Excerpt: - - 56 of 1949. but it seems that precisely on these very facts that are now being alleged in the petition, this petitioner filed a writ petition on 9-7-54, which was dismissed on 14-1-57 by a division bench of this high court, and, the number of the dismissed petition is 2 of 1955. after the dismissal of the previous writ petition on 14-1-57, the petitioner has now filed the present petition on 30-7-57, alleging the same facts......writ petition. 2. without considering the case on merits, i think that the writ petition should be dismissed. my reasons are : 1. according to the principle embodied in explanation no. iv of section 11 of the civil procedure code, any matter which might and ought to have been made a ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in such suit. in this view of the matter, i think that the petitioner ought to have challenged the ordinance no. 56 of 1949 in the former writ petition-the plea, that has been taken with regard to this point in para 6 of the writ petition, is that the grounds that were urged in the dismissed petition were not known to the petitioner before and that the counsel he has engaged now was not available.....

Judgment:

A.H. Khan, J.

1. The facts giving rise to this writ petition in short are that the petitioner alleges that the Assistant Custodian, of Evacuee Property of Bhilsa is ejecting the petitioner under the Administration of Evacuee Property Ordinance No. 56 of 1949. The petitioner challenges the vires of the Ordinance No. 56 of 1949.

But it seems that precisely on these very facts that are now being alleged in the petition, this petitioner filed a writ petition on 9-7-54, which was dismissed on 14-1-57 by a Division Bench of this High Court, and, the number of the dismissed petition is 2 of 1955. After the dismissal of the previous writ petition on 14-1-57, the petitioner has now filed the present petition on 30-7-57, alleging the same facts. The only new addition in the present petition is that he now challenges the vires of Ordinance No. 56 of 1949 and this he did not do in the previous writ petition.

2. Without considering the case on merits, I think that the writ petition should be dismissed. My reasons are :

1. According to the principle embodied in Explanation No. IV of Section 11 of the Civil Procedure Code, any matter which might and ought to have been made a ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in such suit. In this view of the matter, I think that the petitioner ought to have challenged the Ordinance No. 56 of 1949 in the former writ petition-The plea, that has been taken with regard to this point in para 6 of the writ petition, is that the grounds that were urged in the dismissed petition were not known to the petitioner before and that the counsel he has engaged now was not available to him previously. Although 3. 11, Civil Procedure Code (Res Judicata) does not apply in terms to cases of writ, but the principle contained in it should be applied, otherwise there will be no end of the same matter being agitated again and again.

2. The remedy provided for in Article 226 of the Constitution is a discretionary remedy and I do not propose to exercise my discretion, about the validity of an Ordinance that expired about 8 years back.

3. With regard to the successive applications for the issue of writs, the following-passage from the Halsbury's laws of England Edition, Vol. 9, page 786 supports my view : 'When an application for prerogative writ has been made, argued and refused on the ground of defects in the case, it is not competent for the applicant to make a second application for the same writ on amended affidavits containing fresh materials.'